Bailey v Urban Transit Authority [2002] NSWCA 239

New South Wales Court of Appeal

CITATION : Bailey v Urban Transit Authority [2002] NSWCA 239 FILE NUMBER(S) : CA 40956/01 HEARING DATE(S) : 12 July 2002 JUDGMENT DATE : 25 July 2002

PARTIES : Glenice Margaret Bailey (Appellant) Urban Transit Authority (Respondent) JUDGMENT OF : Stein JA at 1; Heydon JA at 47

LOWER COURT JURISDICTION : District Court LOWER COURT DC 26001/85 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER :

COUNSEL : M R Aldridge SC/M Gunning (Appellant) K Andrews (Respondent) SOLICITORS : Doherty Partners (Appellant) Lynley Tretheway (Respondent) CATCHWORDS : NEGLIGENCE - appellant injured in a bus accident - causation - whether the bus accident was causally related to appellant's subsequent psychological state - quantum - ND LEGISLATION CITED : n/a CASES CITED: Chappel v Hart (1998) 195 CLR 232 March v Stramare (1991) 171 CLR 506 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40956/01 DC 26001/85

STEIN JA HEYDON JA

Thursday, 25 July 2002 GLENICE MARGARET BAILEY v URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES

Facts

The appellant, Glenice Margaret Bailey, was injured on 22 November 1984 when she was a passenger on the respondent's bus whilst travelling home from work. At the time of the accident the appellant was employed as an auditor with the Australian Audit Office. Initially she returned to work. However, in July 1986, following a disagreement with her supervisor at her place of employment, she left the office and did not thereafter return to work. On 28 June 1989 she was retired medically unfit from the Commonwealth Public Service.

In the District Court the appellant claimed damages for economic loss, both past and future. His Honour, Certoma ADCJ, awarded the appellant $30,000 for general damages, essentially confined to the soft tissue injury to her neck and back. To this award, out of pocket expenses of $4,854 were added. His Honour made no award for economic loss, hence he entered a verdict and judgment for the appellant in the sum of $34,854.

The appeal concerns the trial judge's findings relating to the appellant's psychological or psychiatric state and his conclusions on causation in relation thereto. His Honour found that the appellant had failed to discharge the onus upon her of showing that the defendant's conduct was causally related to her emotional state, and even if the onus had been discharged, her damages were too remote a consequence and were not reasonably foreseeable.

The appellant submits that damages should have been awarded for past and future economic loss, as well as larger general damages to take account of the psychological injury.

Held: per Stein JA (Heydon JA agreeing)

1. Although his Honour did not expressly use the words of 'material contribution' he is to be quite clearly understood as saying that the bus accident in November 1984 did not make a material contribution to the appellant leaving the workforce in mid 1986.

2. The evidence amply justifies such a conclusion notwithstanding that his Honour did not expressly reject or qualify portions of the medical evidence.

3. When the evidence is considered, his Honour's decision was one which he was entitled to arrive at.

Orders:

Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40956/01 DC 26001/85

STEIN JA HEYDON JA

Thursday, 25 July 2002 GLENICE MARGARET BAILEY v URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES Judgment 1 STEIN JA: Introduction 2 This is a plaintiff's quantum of damages appeal from a judgment of Certoma ADCJ delivered in the District Court on 8 August 2001. The appellant, Glenice Margaret Bailey, was injured on 22 November 1984 when she was a passenger in the respondent's bus whilst travelling home from work. 3 The bus braked suddenly and she was thrown forward colliding with another passenger. The appellant suffered a conventional whiplash injury which required conservative treatment with analgesics and physiotherapy. 4 Liability was either admitted or barely contested. In any event, his Honour found against the respondent on liability. While the respondent pleaded contributory negligence, his Honour had no difficulty in finding that the respondent was solely responsible for the accident. 5 At the time of the accident the appellant was employed as an auditor with the Australian Audit Office. She left work in July 1986 and has not worked since. On 28 June 1989 she was retired on invalidity grounds.

6 In the District Court the appellant claimed damages for economic loss, both past and future. His Honour awarded the appellant $30,000 for general damages, essentially confined to the soft tissue injury to her neck and back. To this award, out of pocket expenses of $4,854 were added. His Honour made no award for economic loss, hence he entered a verdict and judgment for the appellant in the sum of $34,854. 7 The appeal concerns his Honour's findings relating to the appellant's psychological or psychiatric state and his conclusions on causation in relation thereto. The Notice of Appeal maintains that damages should have been awarded for past and future economic loss, as well as larger general damages to take account of the psychological injury. The appellant seeks many hundreds of thousands of dollars in damages for economic loss. Indeed, the written submissions lodged on behalf of the appellant suggest a verdict of close to $1 million.

The judgment at first instance 8 Before referring to key passages from the judgment at first instance, I should record that while the Statement of Claim was issued on 27 November 1985, one year after the bus accident, the hearing did not take place until August 2001. No cogent reasons have been advanced as to the cause of this extraordinary delay, which doubtless made the evidentiary task of the parties, and the judge, more difficult than usual. 9 His Honour noted a number of factors associated with the appellant's medical history. First, that from the time of the bus accident in November 1984, the appellant received conservative treatment for her whiplash injury, which treatment included physiotherapy. She saw general practitioners – Dr Quittner and later Dr Fitzpatrick. She had X-rays of the cervical spine which revealed no abnormality. Dr Fitzpatrick referred her to an orthopaedic surgeon, Dr Holt who, in July 1986 stated that she 'remains fit for work'. Dr Fitzpatrick also certified in August 1986 that the appellant was 'fit for occupation as an auditor' and Dr Watts, another orthopaedic surgeon, in a report to the respondent on 11 July 1986 stated as follows: 1. Originally this lady could have had a muscle and ligamentous strain in her neck and right shoulder producing temporary disability. This may have lasted up to some months. 2. I can find no sign of any residual trouble now and examination reveals nothing except a normal back and shoulders and arms and I consider she has long ago completely recovered. 3. I consider there is no remaining disability and she is now fit for full activity and her full usual work. I can see no reason to expect any later disability from this accident. I consider her continued complaints are not real. 10 However, Dr Holt referred the appellant to Dr Barclay, a psychiatrist, who first saw the appellant on 19 August 1986, that is, some 21 months after the accident. Dr Barclay saw the appellant on a number of occasions over the next two years or so until she was retired on invalidity grounds. 11 While Dr Barclay noted the appellant's whiplash type injury and continuing neck symptoms, he also noted other important issues in the appellant's life. Notably her intense conflict situation at work. 12 Indeed, Dr Barclay referred to the appellant's 'phobic hostility towards any bureaucratic organisation'. He saw her major problems as psychological. Other issues also contributed to her condition, notably the appellant's mother's cancer and her death in June 1985 after a 6 months illness; an accident at work in 1986 when the drawers of a filing cabinet fell on her; and her diagnosis of mammary dysplasia and understandable fears of breast cancer. 13 Later, there was an accident in 1992 when she fell at a supermarket. In addition, there was serious conflict after her father's death in 1994 because she was, so it seems, disinherited. This lead to prolonged litigation and there appears to have also been conflict concerning a family partnership. However, the evidence does not make it clear whether this was part of the one piece of litigation. 14 It is of note that the treatment which the appellant received was relatively minimal between the bus accident in late 1984 and 1986, and was principally in the form of physiotherapy sessions. Moreover, she has had no treatment for her neck and back, nor for her psychological or psychiatric problems, since 1986 or 1987. 15 In preparation for the District Court hearing, the appellant saw a large number of practitioners between 1998 – 2000 for medico-legal purposes. These included orthopaedic specialists and psychiatrists. Dr Giblin, an orthopaedic surgeon, thought that she had a soft tissue injury to her cervical spine and remained fit for work not involving heavy lifting or prolonged sitting or standing. Her psychological problems were, he felt, environmental and had resolved without any on-going treatment. Dr Deveridge considered that while the appellant had lost periods of time from work after the accident, she demonstrated her ability to carry out her pre-accident work for almost 2 years after the injury. She had left her employment for a combination of reasons. From a physical point of view, he believed that she was fit for work as an auditor, with some restrictions. 16 Medico-legal psychiatrists who the appellant saw in 2000 included Dr Robertson. He thought that she had a condition called 'attitudinal pathosis'. Dr Dyball considered that the appellant had: … suffered significant anxiety and depression in the years around 1985/1986/1987 while at work and developed significant hostility towards the work situation. Whether that was justified depends entirely upon objective evidence which I do not have but suspect there were significant paranoid symptoms present and I think it is clear from the material you have sent me that she was never again going to work in that type of bureaucratic organisation. I think she has settled satisfactorily into a retired lifestyle that removes her from the possibility of a similar situation ever again reoccurring … My suspicion is that if she was in a work environment there would again be interpersonal difficulties … She has sought no psychiatric care since Dr. Barclay because I think once outside of the work situation she was no longer significantly psychologically troubled. She has few symptoms nowadays of any psychological note. 17 Dr Bodel suspected that the appellant's neck problems were a combination of the bus accident and the filing cabinet accident suffered in January 1986. 18 Professor Jones found 'no organic impairment to her neck or upper limbs' and regarded the appellant as independent in all activities of daily living. She was capable of full-time employment in a clerical capacity. 19 His Honour made findings about the appellant's credit. He said: Although the plaintiff may, understandably, have had difficulties recalling events that happened so long ago, the plaintiff was vague in most of her evidence and shielded herself by not being able to recall pertinent matters. Apart from the accident itself, the plaintiff was able to recall very little, unless prompted, and even then she could not recall detail. Thus, for example, the plaintiff could not recall, or was hesitant about, any matters concerning the difficulties that she had with her employers, could not recall the details about the filing cabinet incident, and did not recall, until reminded, [of] her employment with TAFE. The plaintiff was also inconsistent in some of her responses, for example, she stated in evidence that she played certain sports before the accident but in cross-examination she did not remember playing sport in the 12 months prior to the accident. She was also sensitive about answering questions which she regarded as touching personal matters, and family litigation, which she is apparently involved in. 20 This lead his Honour to say: Therefore, the objective evidence, and particularly the available medical evidence relating to the first few years after the accident, is of significance. 21 I understand his Honour to be concluding that the appellant's evidence was unreliable in certain respects. 22 A reading of the appellant's evidence confirms that, even taking account of the need to look back many years in time, she was vague and sometimes unresponsive to questions. Many times she answered questions by saying that she was unable to recall. The unreliability of her evidence becomes important, as will later be seen.

The case for the appellant 23 His Honour made a number of findings which are important to repeat for the purposes of the appeal. His Honour said that the evidence established: 1. Although the plaintiff was attending physiotherapy she was capable of, and continued, normal work duties at the Australian Audit Office and gave bi-weekly lectures at TAFE until July 1986. as already noted, on 10 July 1986, Dr Holt regarded the plaintiff as "fit for work", as did Dr Fitzpatrick, who on 16 August 1986 certified the plaintiff as "mentally fit for occupation as an auditor". Until the plaintiff left work on 11 July 1986, after certain events at work, she had minimal time away from work. 2. The plaintiff suffered soft tissue injuries as a result of her near fall in the bus accident and she was treated conservatively with physiotherapy and tablets. X-rays did not reveal any significant abnormality in the affected areas. Her treatment did not change even after she eventually saw her orthopaedic specialist, Dr Holt, in 1986. Dr Holt reported on 10 July 1986 that the plaintiff "realised there is a stress overlay to her complaints", and, in turn, referred her to Dr Barclay, a psychiatrist, who first saw the plaintiff on 19 August 1986. It was not until she saw Dr Barclay that there was any suggestion that the plaintiff was not fit to work. Although she refused any treatment or medication from him, the plaintiff saw Dr Barclay on a few occasions until her retirement from the public service in 1989, and after that time has not sought any medical treatment of any kind. The plaintiff, therefore, has had minimal treatment, apart from physiotherapy for some year and a half since the date of the accident. 3. On balance, the real reason for which the plaintiff ceased to work in July 1986 was an emotional state brought on by factors unconnected to the accident. These factors, which are all referred to in the medical evidence, include: her mother's hospitalisation shortly after the time of the accident for cancer and her subsequent death in June 1985; her deteriorating relations with her employer that, so far as the evidence disclosed, arose out of the plaintiff's attitude and approach to taking sick and recreation leave (not all of which was related to the accident) without prior approval and then escalated to a serious conflict in work relations as a result of the unreasonable attitude taken by the plaintiff, her colleagues and superiors; the work-related accident involving the filing cabinet; her diagnosis of mammary dysplasia and her worries about the possibility of developing cancer; and extensive litigation with her family concerning succession and property issues. The plaintiff conceded that all of these have caused her stress and anxiety. It follows that the plaintiff has failed to discharge the onus upon her of showing that the defendant's conduct was causally related to her emotional state, and even if the onus were to be discharged, the plaintiff's damages are too remote a consequence, the plaintiff's emotional state arising out of factors which were not reasonably foreseeable by the defendant. 24 The appellant's challenge to his Honour's judgment concentrates on para 3 quoted above. It is submitted that his Honour misstated the law on causation and the judge should have considered whether the respondent's breach of duty materially caused or contributed to the harm suffered by the appellant, see March v Stramare (1991) 171 CLR 506 at 509, 515 and Chappel v Hart (1998) 195 CLR 232 at 238. It is submitted that his Honour made no finding as to whether or not the physical injuries which the appellant suffered in the bus accident contributed to her decision to cease work and whether her psychological condition arose as a result, at least in part, from her physical injuries. 25 In brief Mr Aldridge SC, appearing on behalf of the appellant, submits that his Honour posed the wrong test when he referred to the 'real reason' for her leaving work in 1986. Counsel submits that there was before his Honour a deal of medical evidence that the injury received in the bus accident in November 1984 contributed to the appellant's cessation of work and to her psychological condition. In particular, evidence of Dr Barclay which his Honour did not reject. Mr Aldridge submits that the weight of the medical evidence compelled the finding that the bus accident was a material contribution to the appellant's loss of employment. 26 Counsel accepts that there may have been a number of factors which contributed to the appellant ceasing to work. However, he submits that one of them was the bus accident and its sequelae.

Consideration 27 I have earlier quoted from his Honour's remarks on the reliability of the appellant's evidence. This lead him to say, as I have set forth, that the objective evidence, especially that relating to the medical evidence for the period immediately following the accident, was significant. 28 When these reports are examined, indeed even the medico-legal reports between 1998 and 2000, it is apparent that not one doctor had a full history from the appellant. Indeed, this is the thrust of the submission made by Mr Andrews, on behalf of the respondent. 29 The appellant's evidence was to the effect that she had had no accident prior to the bus accident which concerned her back or neck. She was a little equivocal about this but it is clear that she was endeavouring to convey to his Honour that she had experienced no real back problems until the bus accident. 30 However, it is apparent from a report of her general practitioner, Dr Quittner, that in May 1984, six months before the bus accident, she attended him for a back problem and was off work for that reason on 31 May and 1 June 1984. Dr Quittner reported that he first saw the appellant with a back problem on 31 May 1984. According to his notes, she told him that she had not previously had back trouble and that she attributed her problem to lugging a heavy briefcase for work. 31 When this incident was put to the appellant in cross-examination, she had no recall. Indeed, she denied any pre-existing back problem. 32 The appellant also suffered a work accident in January 1986 when a heavy filing cabinet fell on her. She said that this aggravated her back. It is fair comment to say that she down played any significance of the filing cabinet accident at work. However, it may be noted that she was off work from 30 January to 7 February 1986 as a result of that accident. She agreed in evidence that the injuries she suffered from this event were to her back, neck and upper torso. 33 It is significant that prior to this accident in January 1986, some 15 months after the bus accident, the appellant had only been treated with analgesics and physiotherapy. Further, she had not seen any doctor regarding any psychological problems. 34 It was not until April 1986 that an orthopaedic surgeon, Dr Holt, referred the appellant to Dr Barclay. She first saw Dr Barclay in July 1986, a significant period of time after the bus accident. 35 It is trite to say that medical practitioners place reliance on accurate and complete histories to make accurate prognoses. What is remarkable in this case is that not one doctor appears to have been told by the appellant that she had a back injury in late May 1984. One would have thought that it would have some importance occurring only six months before the bus accident. 36 Moreover, with one exception, no doctor appears to have been told of the January 1986 filing cabinet accident. This accident is significant because it concerned the appellant's back and neck. The only exception is to be found in her history given for the purposes of one of the medico-legal reports in 2000. 37 In the absence of frank histories to the doctors, their conclusions cannot always be accepted at face value. The doctors treated her as having a trouble free back at the time of the accident. They were not to know that this was not the case. None of the treating doctors were told of the not inconsequential injury to her neck and back in the filing cabinet accident at work. This could have been a significant intervening event which lead to psychological problems. It seems that it was within six months of this accident that the appellant first saw a psychiatrist, Dr Barclay. 38 When the early medical reports are examined, it appears that neither Dr Holt nor Dr Barclay knew of the May 1984 or January 1986 accidents. They understandably assumed that the injuries received in the bus accident was the only back related injury and Dr Barclay (understandably) accepted the link to the appellant's psychological condition. 39 Dr Tam was in the same ignorant position. So were Drs Deveridge, Boyce, Benezio, Gatenby, Frame ('symptom free to November 1986'), Giblin, Dyball and Professor Jones. 40 As his Honour observed, there were significant other factors impacting on the appellant. Her mother's bowel cancer in late 1984 and her subsequent death in June 1985; the appellant's own mammary dysplasia and understandable cancer worries; the deteriorating work situation culminating in the appellant leaving work in July 1986 never to return and the extensive family related litigation. 41 His Honour concluded that the appellant's leaving work in mid 1986 was unconnected with the bus accident. In his judgment the appellant had failed to discharge the onus on her of establishing that the bus accident was causally related to her subsequent psychological state. 42 It is true that his Honour did not use the words of material contribution. However, in effect he is to be quite clearly understood as saying that the bus accident in November 1984 did not make a material contribution to the appellant leaving the workforce in mid 1986. 43 The evidence amply justifies such a conclusion notwithstanding that his Honour did not expressly reject or qualify portions of the medical evidence, particularly that of Dr Barclay. A more experienced judge would have done so. 44 In my opinion, when his Honour's reasons are fairly read, he did by implication reject the link between the bus accident and the appellant's leaving work in mid 1986 and the onset of her psychological problems. 45 It does not follow that his Honour was necessarily denying that the bus accident had any effect on the appellant's subsequent psychological problems and loss of employment. However, it is clear that his Honour did not find the bus accident and its physical sequelae to be a material contribution. Thus understood, and when the evidence is considered in its proper context, his Honour's decision was one which he was entitled to arrive at. 46 It follows, in my opinion, that the appeal should be dismissed with costs. 47 HEYDON JA: I agree with Stein JA.

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